June 01 2010
That’s the only way. There may be some question as to whether condos can impose transfer fees, but there’s no dispute that boards of both co-ops and condos have the power to tax you more or less as they please. Big Boards are like Big Government. The sky’s the limit for co-op boards, though usually boards of condos have to seek owner approval before assessing or spending above certain pre-set limits.
They can spend your money however they like – for a new lobby or plumbing or elevators or other items that serve everyone. Or you can be required to fork over funds for things you don’t even want and will never use – to pay for a gym though you’re a unrepentant sloth, or for a playroom despite the fact that you have no kids, or a library — no one’s going to admit they don’t read. Can’t use those rooftop terraces that are the exclusive purview of penthouse owners? You still can be assessed to fix the roof.
The money can be taken from you before it’s even in your pocket, like those special assessments most boards impose laying claim to the real estate tax abatements that are legally yours, but become legally theirs with the stroke of a pen.
But maybe those Tea Partiers are having a trickle down effect because increasingly owners of both co-ops and condos are saying ENOUGH, using novel theories to try and roll back the assessment assault.
Here are some of the latest attempts:
The Board is harassing me: That’s what one home owner claimed when the board imposed a special assessment to fix an emergency sewage problem, if you ask me not the best test case. He lost, as did another owner using the theory to escape payment of assessments for restoration work to his condo.
The board is arrogant and dumb: So said a Lido Beach unit owner. Maybe true, but he still had to pay more than $90,000 in assessments and charges for his share of the cost of construction and repair of the building, no matter that the board may have overspent and mismanaged the project.
The board is guilty of racketeering. An Upper East Side condo owner tried to up the ante, accusing his board of engaging in a criminal enterprise, like a drug cartel or prostitution ring, by violating what’s called the Racketeer Influenced and Corrupt Organizations Act (RICO). What was the crime? Imposing an assessment of nearly $400,000 for hallway renovations without getting proper consent from all the owners’ mortgagees, the non-payer said. That’s not criminal the answer came back. The board was right and you’re wrong, so better pay up or face the consequences.
The board has a potential conflict of interest. Sorry, not even that’s necessarily a good enough excuse for not paying.
The only way you stand a chance of overturning an assessment is to show that the board acted without authority or in bad faith, which is hard to do. Otherwise, the court will send you packing without even listening to what you have to say because the board is exempt to assessment challenge under the Business Judgment Rule.
So what can you do if you think your board is about to sock it to you?
1. Nobody likes shelling out cash, but be rational. Is the money for something that needs doing — a leaky roof, an antiquated plumbing system. Is an assessment the best — maybe the only way — to pay for it? Do you trust the assessors to spend your money wisely and provide you with an accounting?
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